Why you should care

Because where there’s red tape, there’s a way around it.

By Andrés Cala

The Daily DoseMAY 21 2015

If all had gone according to plan, German Coppola would have been earning $130,000 this year as the senior vice president of sales and marketing at a U.S.-based data-capture company. Instead, the Spaniard’s application for an H-1B visa to work in the U.S. — along with tens of thousands of others’ — wasn’t even considered. And even though Coppola’s sponsoring company had loosely committed to trying again last year, he wasn’t willing to wait out the uncertainty. “I just said, ‘Fuck it!’” he says.

Believe it or not, the odds of getting into one of the world’s hottest economies just got even slimmer. Following a lull in foreign-worker visa requests between 2009 and 2012, a record 233,000 applications for H-1Bs — reserved for coveted brainiacs and skilled positions — were filed as soon as the yearly flood gates opened in April this year. Not only did all 65,000 available golden tickets go almost immediately, but so did another 20,000 reserved for those with a master’s degree, which is the kind Coppola once had his eyes on. In the end, most applicants put their hopes in a lottery system that preselects lucky candidates, and another 40,000 or so each year squeeze in through academic institutions or nonprofit groups, which are exempt from the government’s quota system.

Determined companies look for advantages wherever they can find them.

But here’s what’s also playing out behind the scenes: Some companies are now employing little-known immigration fixers or testing out schemes to grab international talent. After shelling out $4,500 to $14,000 per H-1B visa applicant, including legal fees, only to be denied, they’ve become so desperate for certain workers that they often have a plan B that involves waiting two, three or even four years (assuming candidates are game) while throwing in perks like tuition costs for a graduate degree. There’s also a plan C: quietly bypassing immigration restrictions by having bright minds live outside the U.S., then travel into the country for short periods on “tourist” visas. (A Homeland Security spokesperson says they execute, not create, the law and wouldn’t comment further.)

When none of those tactics work, some companies have started relocating their targeted candidates — along with the teams they manage — overseas. That’s how one of William Stock’s clients ended up in London, even though the man — along with about half of all H-1B visa seekers — holds an advanced degree from a U.S. university. “We are bringing people in and then telling them to go elsewhere,” says Stock, who is first vice president of the American Immigration Lawyers Association and a partner at Klasko Immigration Law Partners. Companies, he adds, “can’t plan this way.”

Protesters chant during a May Day rally on May 1, 2015, in downtown Los Angeles. Many of the protesters were calling on leaders in Washington to come up with a comprehensive immigration plan.

Source Sandy Huffaker/Getty

Indeed, some immigration lawyers say the U.S. government’s restrictions are backfiring. America’s tech industry has been especially hard-hit when it comes to talent shortages. It’s expected to create 120,000 jobs annually through the end of the decade, though U.S. colleges only churn out some 51,000 graduates, according to a 2014 report on the economic effects of denying H-1B applicants. Many rejects naturally look elsewhere for opportunities. “This situation is very negative for the U.S. and very positive for other countries,” says Monica Martinez, the CEO and founder of Columbus Global Solutions, a Boston-based consultancy.

Of course, few like to discuss this topic on the record, in part due to fear of what Homeland Security might do. (Over half a dozen recent H-1B candidates and their companies turned down our requests for interviews.) “There is staggering fear,” says Javier Pico, an immigration lawyer at the Boston-based firm Pico Law. While he processed more than 36 applications, Pico expects only around a quarter to be approved — he considers that a high success rate — and a third of his clients are trying for a second or even third time. Ouch.

Determined companies look for advantages wherever they can find them. Some offer huge salaries and blow up job descriptions to appear more exceptional for immigration bureaucrats. The offers are also purposefully crafted to closely match what the government perceives the country needs, thereby boosting the odds of a yes. “We seek an edge in this regard,” Pico says.

Then there are the specialized firms that groom candidates and their sponsor companies that want to expand into the U.S., which is where experts like Martinez come into the picture. She helped one of her clients from Europe disembark in the U.S. with a sponsored “cultural exchange” visa that includes business training, known as J1, to pitch a tech-development project. He found a U.S. partner, and a European one, to help with some of the startup capital. To stay, though, he needed to switch to an H-1B; when he couldn’t get one, he flew back to Spain and now travels to America on a tourist visa to supervise the project.

As for Coppola, he’s since set up his own company in Madrid and is now negotiating with a Silicon Valley-based startup incubator to pursue a longer-term expansion into the U.S. His ultimate goal? To eventually compete with the company that once sought to employ him — with investments and jobs that are now home to Spain.